Mercier v. Boilermakers Apprenticeship Training Fund

Full title: JOANNE MERCIER Plaintiff, v. BOILERMAKERS APPRENTICESHIP AND TRAINING…

Court: United States District Court, D. Massachusetts

Date published: Feb 10, 2009

CIVIL ACTION NO. 07-CV-11307-DPW (D. Mass. Feb. 10, 2009)

Opinion

CIVIL ACTION NO. 07-CV-11307-DPW.

February 10, 2009

MEMORANDUM AND ORDER

DOUGLAS WOODLOCK, District Judge

Plaintiff Joanne Mercier brings this complaint against defendants Boilermakers Apprenticeship and Training Fund ("Trust"), Boilermakers National Joint Apprenticeship Board ("National Board"), and Boilermakers Northeast Area Apprenticeship Committee ("Northeast Area Committee") for denial of benefits (Count I) and breach of fiduciary duty (Count II) under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq. ¹ Mercier also alleges defendants wrongfully retaliated against her for exercising rights to which she was entitled under ERISA, in violation of 29 U.S.C. § 1140 (Count III). The parties have filed cross-motions for summary judgment as to all three counts. Mercier has also moved for additional discovery for all three counts under Fed.R.Civ.P. 56(f). For the reasons discussed below, I will grant summary judgment for the defendants as to Counts I and II. I will deny summary judgment to both parties with regard to Mercier's retaliation claim (Count III) and I will allow the parties to proceed with additional discovery in connection with that claim.

1 Although the case was initially docketed under the name Mercier v. Kaelin et al., 07-cv-11307-DPW, Mercier amended her original complaint to replace the three named individual defendants (Gerard Kaelin, Chairman of the National Board; Jason Dupuis and Stephan Murphy, Co-Coordinators of the Northeast Area Committee) with the entity defendants named above.

I. BACKGROUND

A. The Parties

The Trust is an employee welfare benefit plan as defined by ERISA under 29 U.S.C. § 1002(1). The National Board and the Northeast Area Committee are plan administrators and fiduciaries of the Trust. Both the National Board and the Northeast Area Committee regularly conduct business in Massachusetts. Plaintiff Joanne Mercier is a resident of Rhode Island who was an apprentice boilermaker in the program established by the Trust prior to her termination in 2004.

B. The Boilermaker Apprenticeship Program

The Trust was created jointly by the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers ("International Union") and certain employers subject to a collective bargaining agreement with that union ("Employers") in order to fund an apprenticeship training program for boilermakers ("Program"). The terms of the Trust are set forth in an Agreement and Declaration of Trust, the latest restatement of which was signed into effect in 1996. (R. 1-36.)² The Trust establishes a National Board and a collection of geographically defined Area Joint Apprenticeship Committees ("Area Committees"), each of which is comprised of an equal number of representatives from the International Union and the Employers. The National Board has the exclusive power to amend the Agreement and Declaration of Trust (R. 29-30), and also has the exclusive power to construe its provisions. (R. 32.)

2 Citations to "(R. ___)" are to the Administrative Record, which was submitted jointly by the parties on March 7, 2008.

The Trust grants the National Board the power to adopt National Standards of Apprenticeship ("National Standards"), which are to be uniform for the Program throughout the country. (R. 17.) Each Area Committee, in turn, has the power to adopt Area Standards of Apprenticeship ("Area Standards"), which must be consistent with the National Standards and are subject to approval by the National Board. (R. 20.) Each Area Committee is also responsible for the control, management, and supervision of the Program in its respective geographic area. (R. 19.) The "Program" is defined by the Agreement and Declaration of Trust as "the plan or program for apprenticeship and other training, including standards, qualifications, eligibility requirements and all other phases thereof, to be established by the National Board and Area Committees pursuant to this Agreement and Declaration of Trust through National Standards, Area Standards and other media and action." (R. 10.)

Both the National Board and the Area Committees have the authority to adopt rules and regulations in connection with their powers and consistent with the terms of the Trust. (R. 24-25.) Pursuant to this authority, the Northeast Area Committee adopted a set of regulatory and disciplinary rules, published as a handbook called "Regulations and Disciplinary Action" ("Handbook"). (R. 158-66.) These rules apply to Program participants throughout the designated Northeast Area, including, inter alia, Rhode Island and Massachusetts. (R. 14.)

C. Apprenticeship Advancement and Discipline

According to the terms of the Trust, each Area Committee has "sole discretion to provide for advancement in the term of apprenticeship." (R. 20.) The Northeast Area Standards describe the procedure for initial selection of Program participants, which involves random selection from a pool of eligible applicants. (R. 154-55.) The only minimum qualifications expressly described in the Area Standards are that applicants must be at least 18 years old and have graduated from high school or achieved an equivalent educational level. (R. 114.) Once admitted, each apprentice must sign an Apprenticeship Agreement that outlines the terms and conditions of the Program and incorporates by reference the Area Standards. (R. 114-15.)

Apprentices receive on-the-job training through work assignments with Employers affiliated with the Program. According to the Handbook, these assignments are made by the local union business manager or his designated representative. (R. 160.) The Area Standards require apprentices to complete each work assignment under the direction and guidance of more qualified journey workers. (R. 119.)

All apprentices in the Program are subject to an initial probationary period, defined in the Area Standards as "1000 hours of on-the-job training." (R. 116.) During the probationary period, either the Area Committee or the apprentice may terminate the Apprenticeship Agreement "without stated cause, by notifying the other party in writing." ( Id.) The Area Standards acknowledge that although "during the probationary period the Apprenticeship Agreement may be cancelled by either the [Area Committee] or the apprentice, without the formality of a hearing or stated cause . . . [i]t is strongly recommended . . . that records be maintained indicating why a probationary apprentice is terminated." ( Id.) Once an apprentice has been "evaluated as satisfactory after a review of the probationary period," he or she will be given full credit for the probationary period and continue in the Program.³ ( Id.) After the probationary period is completed, an apprentice may only be suspended or terminated from the Program "for reasonable cause after documented due notice to the apprentice and a reasonable opportunity for corrective action." (R. 116-17.)

3 The Program generally lasts for a term of four years, during which time the apprentice must complete at least 6000 hours of on-the-job training supplemented by 576 hours of related technical instruction. (R. 130.)

Under the Northeast Area Standards, each apprentice is responsible for maintaining a record of his or her work experience. (R. 121.) The Handbook instructs apprentices to submit these "Work Reports" to their job supervisor at the end of the job or the end of the month, whichever occurs first. (R. 161.) Each Work Report must then be verified and signed by the apprentice's supervisor ( id.), and the reports are included in the apprentice's record file, maintained by the Area Committee. (R. 121-22.) Before each period of advancement, or at any other time when conditions warrant, the Area Committee will evaluate an apprentice's record to determine whether he or she has made satisfactory progress. (R. 122.)

The Handbook describes disciplinary procedures for various transgressions. The Handbook indicates that "[d]uring [the] probationary period, any suspension provided in these Regulations shall be, automatically, doubled. Termination is not affected by this Provision." (R. 165.) The Handbook's prescribed discipline for "[p]roviding any false information or forging or causing to be forged any signature or name" on a Work Report is: "(a) first offense — 30 calendar day suspension; (b) second offense — termination from the apprenticeship program." (R. 161.) By contrast, the individual Work Report forms provided to apprentices in the Northeast Area indicated on their face that "[a]ny falsification of this document will result in immediate termination from the NE Area Program." (R. 299) (emphasis added).

The Handbook also describes the appeal procedure for disciplinary actions. If an apprentice appeals any warning, suspension or termination, the Northeast Area Committee will hold a hearing where the apprentice will have an opportunity to refute the basis for the disciplinary action. (R. 165-66.) The Northeast Area Committee will then mail a written decision regarding the issue to the apprentice. (R. 166.) If the apprentice is still unsatisfied, he or she may appeal the Area Committee's decision to the National Board. ( Id.) The Trust grants the National Board power to "[s]ettle appeals of decisions rendered by [Area Committees]." (R. 18.)

D. Plaintiff's Apprenticeship and Termination

Mercier applied for enrollment in the Program by application dated April 5, 2002. (R. 167-68.) She began working in the Program as a field construction boilermaker on March 28, 2003, after executing an Apprentice Agreement with the Northeast Area Committee. (R. 177-78.) This agreement provided that if the apprentice should be terminated from the Program for any reason, she would not be eligible for reinstatement through the selection procedure.⁴ (R. 177 at ¶ 9.) Less than two weeks later, on April 9, 2003, Mercier executed another Apprentice Agreement, this time on a form provided by the Massachusetts Department of Labor. (R. 181-82.) The second Apprentice Agreement did not indicate that reinstatement would be prohibited after termination.⁵ ( Id.)

4 This March 28, 2003 Agreement was not compliant with federal regulations requiring apprenticeship agreements to include specific information about the sponsor's right to cancel the agreement during an apprentice's probationary period, 29 C.F.R. § 29.7(h)(1), and after the probationary period, 29 C.F.R. § 29.7(h)(2).

5 Also, unlike the March 28, 2003 Apprentice Agreement, the April 9, 2003 Apprentice Agreement expressly indicated the first 1000 hours of the apprentice's employment would be a "probationary period," during which time the agreement could be cancelled by either party with notification to the other and to the Massachusetts Division of Apprentice Training. (R. 182.)

In April 2004, Mercier received a letter from David Dupuis, Coordinator of the Northeast Area Committee, indicating she owed submission of her Work Reports from June 2003 through the then present time. (R. 191.) In June 2004, Mercier received a second letter from Dupuis, indicating she still owed submission of her Work Reports from June 2003 through the then present time. (R. 194.) This second letter emphasized, in all capital letters, "THAT IS ONE FULL YEAR OF NOT SUBMITTING WORK REPORTS THAT IS PART OF THIS PROGRAM!!!!" ( Id.) Following her receipt of the second letter, Mercier eventually submitted the Work Reports in question. (R. 195-96.)

On November 5, 2004, Mercier received a letter from Jerry Williams, the business manager of Mercier's local union, informing her that there were problems with her Work Reports. (R. 196.) The letter explained: "Some or (sic) the work reports are signed by people either not on the job or not supervisors or your immediate foreman. Also there are hours on reports for which I have no records. Finally there are hours far in excess of hours we have you as working." ( Id.) Williams enclosed copies of Mercier's Work Reports, as well as copies of Steward Reports from some of the jobs on which Mercier had worked, showing an inconsistent number of reported hours.⁶ The letter instructed Mercier to report to the local union office on November 22 to "show cause why [she] should not be immediately terminated from this program." ( Id.)

6 Steward Reports are reports prepared by the shop steward at each work site independently of the Work Reports submitted by individual apprentices. (R. 216-35.)

After Williams met with Mercier at the union office, he sent a fax to David Dupuis on December 7, 2004, asking Dupuis "to terminate [from the Program] Probationary Apprentice Joanne Mercier for falsification of her work reports." (Doc. 237.) Williams further explained:

Ms. Mercier submitted work reports with hours she did not work, jobs she did not work and had signatures of Supervisors and Foremen who were not on the job she was assigned to. From the information we have collected, we feel she has taken credit for close to 400 hours she never worked.

( Id.) Later the same day, Dupuis sent a letter to Mercier on behalf of the Northeast Area Committee, informing her that her apprenticeship in the Program was thereby cancelled for "Falsification of Documents." (R. 238.)

E. Plaintiff's Appeals

On December 14, 2004, Mercier sent a letter to the Northeast Area Committee, indicating her desire to appeal the decision to terminate her from the Program. (R. 245.) The Northeast Area Committee heard Mercier's appeal on January 3, 2005.⁷ (R. 256-57.) Both Jerry Williams and David Dupuis attended the hearing as members of the Northeast Area Committee. (R. 256.) According to the Minutes, Dupuis presented to the Committee "detailed reasons" for Mercier's termination, including that she "falsified reported hours on work reports" and "[a]ttendance on the job was not up to standard." ( Id.) Mercier was not in the room for Dupuis's presentation of the reasons for her termination. ( Id.)

7 Defendants assert that despite the notation of "January 3, 2005" on the Minutes of this hearing, the hearing was actually held January 4, 2005. This discrepancy is not relevant for purposes of the motions before me.

When Mercier had the opportunity to address the Committee, she offered several grounds for her defense. (R. 257.) First, she argued that she should have been suspended rather than terminated, claiming that other apprentices had received warnings before their termination. ( Id.) She explained that she was a single parent who "misses time because of her responsibilities." ( Id.) Mercier also claimed that the Work Reports in question "had been left on a job site and moved from one table to another through the night."⁸ ( Id.) In response to Mercier's statement that she did not understand how the Committee "tracks the hours" for the Program, Dupuis explained "that the hours are tracked by the work reports that the apprentice gives to the [Northeast Area Committee] Office." ( Id.) He added that "the Pension Department does not have anything to do with apprentice hours."⁹ ( Id.)

8 Although the Minutes do not provide further context for this statement, Mercier presumably provided this account to explain the tardiness of her submission of the Work Reports.

9 Dupuis's reference to the Pension Department was likely a response to Mercier's argument that the Pension Reports showed she had worked more than 1000 hours throughout 2003-04, thus elevating her beyond the status of a "probationary" apprentice and entitling her to a lesser punishment and an opportunity for corrective action. Mercier later made this argument regarding the Pension Reports in her appeal to the National Board, and she has reiterated it in this lawsuit.

On January 13, 2005, the Northeast Area Committee sent Mercier a letter to notify her it had upheld her termination from the Program. (R. 267.) The letter did not describe a specific reason for the Committee's decision, indicating only that it was "[a]s a result of [Mercier's appeals] hearing." ( Id.) Mercier decided to appeal the Committee's decision to the National Board. (R. 270.)

In a two-page memorandum to the National Board, Mercier set forth several reasons why her termination should be overturned and reduced to a suspension. (R. 270-71.) First, she observed that the Northeast Area Committee "appears to believe that I could be terminated, rather than suspended, because (according to [the Northeast Area Committee]) I had not completed my 1000 hours' probationary period." (R. 270.) Mercier argued that based on the records maintained in connection with the Boilermaker Pension Trust, ¹⁰ she had indeed completed over 1000 hours of on-the-job training. She further argued that even if she were deemed a probationary apprentice, the Handbook indicated she should receive a suspension that was "doubled," rather than outright termination, because this was her first offense. (R. 270-71.) Next, Mercier argued that her penalty was simply "unfair" under the circumstances. She contended that the supervisory personnel who had signed her forms "evidently believed they were authorized to do so," and their mistake should not be held against her. (R. 271.) She added that she had completed the reports "long after the jobs were done" and "may have been careless," but emphasized she "was not trying to cheat [the Northeast Area Committee]." ( Id.)

10 Pension hours and contributions for the Boilermakers National Pension are maintained by the Boilermaker-Blacksmith National Pension Trust. (R. 252-55.)

The National Board heard Mercier's appeal on May 12, 2005. (R. 272-84.) Because the hearing was held at the National Board's Spring Conference in Orlando, Florida, Mercier was not required to attend, and she did not. ( Id.) The Minutes of the conference indicate that "[a]fter much discussion" regarding Mercier's appeal, the National Board voted unanimously to "refer this appeal back to the Northeast Area Committee for their reconsideration." (R. 281.) The Minutes provide no other information about the content of the Board's discussion of the matter. The Northeast Area Committee again reviewed Mercier's case on May 25, 2005. (R. 377.) On June 8, 2005, the Committee sent a letter to Mercier, informing her that as a result of their review, her termination from the Program would be upheld. ( Id.)

F. Plaintiff's Efforts to Reapply to the Program

According to Mercier, immediately after she received her first letter of termination from David Dupuis on December 7, 2004, she called Jerry Williams, then the business manager of her local union and a member of the Northeast Area Committee. Mercier expressed disappointment about her termination and asked Williams whether there was anything else she could do. Williams informed her, in what Mercier characterized as a "supportive demeanor and tone of voice," that she could reapply to the Program. Mercier further claims that in June 2005, shortly after she received her final letter of termination from the Northeast Area Committee, she spoke with Harold Smith, the National Coordinator for the Program (R. 272), to ask whether she could make further appeals. Smith told Mercier she had exhausted her appeal options but she could still reapply to the Program.

In October 2005, Mercier completed a written application for readmission to the Program. Mercier claims she completed the application at her local union hiring hall with the assistance of Joseph Berrolini, a dispatcher and office assistant to the local union business manager and the local apprentice coordinator. Berrolini answered Mercier's questions regarding the application and accepted the form from her when she completed it. Mercier indicates she spoke with Berrolini several additional times, and in January 2006 he informed her she would be in the next group of applicants to be considered for admission into the Program. Following this, however, Mercier did not hear back regarding the Program for several months.

On May 12, 2006, Mercier's attorney sent a demand letter to defendants' counsel, expressing an intention to initiate litigation to challenge Mercier's termination from the Program.¹¹ Settlement discussions ensued, and on June 12, 2006, Mercier's counsel provided defendants' counsel with a settlement proposal incorporating a suggestion that Mercier be re-enrolled in the Program. One week later, on June 19, 2006, defendants' counsel replied in a letter:

11 Defendants object to the admissibility of Mercier's testimony about the settlement negotiations between her counsel and defendants' counsel. As discussed in section V.C.1, infra, I find that Mercier's evidence regarding these negotiations is admissible pursuant to Fed.R.Evid. 408(b) for the limited purpose of supporting Mercier's claim of retaliation under 29 U.S.C. § 1140. See Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998) ("[S]ettlement letters . . . can be used to establish an independent violation (here, retaliation) unrelated to the underlying claim which was the subject of the correspondence.").

You may recall that I advised you [during a May 31, 2006 conversation] that your client had applied for readmission into the Program, and that, in the near future, her name would be reached for action. I also told you it was unlikely that the Program would readmit her with tort claims pending against the Program. Thus, I considered it an appropriate opportunity to resolve her claims, if possible.

Your letter of June 12 makes it clear to me that a settlement in time to accommodate favorable action on her readmission application will not be reached. I will recommend to the Trustees that they withhold action on her application until her claims have been resolved.

(Doc. 61, Mercier Aff., Attachment A.)

On July 3, 2006, Mercier received a form letter from the current business manager of her local union, addressed "Dear Prospective Apprentice." (R. 379.) The letter informed Mercier that the local union would soon bring in the next group of applicants for the Program and asked her to indicate whether she remained interested in admission. ( Id.) Mercier completed and returned the form included with the letter to affirm her continuing interest in readmission. (R. 381.)

On July 7, 2006, Mercier's counsel faxed a letter to defendants' counsel to follow up on Mercier's earlier settlement proposal. (R. 384.) The letter described the July 3 letter Mercier had received from the local union, noting that "[o]f course, she intends to inform the Program that she wishes to enroll." ( Id.) The July 7 letter continued: "However, you have previously informed me that your client will not accept her into the Program unless and until her legal claim is resolved. Accordingly, I strongly urge that you and your client determine your views on our settlement proposal as soon as possible." ( Id.) The same day, defendants' counsel responded by fax, stating:

[F]irst, the letter your client received was sent by [the local union] to everyone on the list solely to ascertain interest as some applicants no longer wish to participate. Second, I wrote on behalf of the apprenticeship trustees in June and, even if Ms. Mercier expresses a desire to re-enroll the Trustees will not accept her under the current circumstances. Finally, I can tell you unequivocally that your settlement proposal is unacceptable to the Trustees.

(R. 386.) Following this letter, Mercier received no further communication concerning her readmission application.

G. Litigation History

In June 2007, Mercier filed suit in Massachusetts state court against three individuals in their capacities as representatives of the National Board and the Northeast Area Committee. Mercier alleged two counts: (1) breach of contract for failure to adhere to the terms of the Program (in particular, the disciplinary procedures described in the Handbook), and (2) intentional interference with her advantageous relations with the Employers affiliated with the Program. On July 17, 2007, defendants filed a Notice of Removal to this court, asserting that Mercier's action "arises under, and is subject to, ERISA" because it was "founded on a claim to secure benefits under an ERISA-governed plan." Mercier later amended her complaint to replace the originally named individual defendants with the current entity defendants, and to re-characterize her common law claims under the framework of ERISA.

II. ERISA STANDING

As a threshold matter, I will address defendants' argument that Mercier lacks standing to bring an ERISA claim against them because she is not a "participant" in an ERISA plan. Mercier's claims arise under 29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(3), and 1140, each of which provides a cause of action only to a "participant or beneficiary" of an ERISA plan.¹² Under the terms of ERISA, a "participant" is defined as:

12 Given that defendants' standing argument hinges primarily on their contention that Mercier is no longer a "participant" for purposes of ERISA following her termination from the Program, it is odd that they only raise the argument with respect to Mercier's § 1140 claim (Count III), and not her claims under §§ 1132(a)(1)(B) and 1132(a)(3) (Counts I and II). In any event, I will address the issue with respect to all three of Mercier's claims because standing is a jurisdictional issue a court must consider at any point, even if it raises the issue sua sponte.

[A]ny employee or former employee of an employer, or any member or former member of an employee organization, who is or may become eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit.

29 U.S.C. § 1002(7).

Defendants first argue that Mercier was never a "participant" within the meaning of ERISA because the definition refers to "any employee . . . of an employer," and the Trust was never Mercier's employer. I find this argument unconvincing. By the terms of the statute, a "participant" may also be "any member or former member of an employee organization." Id. It is uncontested that Mercier was formerly a member of the International Union, an employee organization which helped create the Trust that established the Program. Furthermore, the statute includes within its definition of "employer" "any person acting . . . indirectly in the interest of an employer, in relation to an employee benefit plan." Id. at § 1002(5). It is uncontested that the Program meets ERISA's definition of an "employee welfare benefit plan," which includes "apprenticeship or other training programs." Id. at § 1002(1). The statute's definition of "employer" therefore encompasses both the National Board and the Northeast Area Committee, each of which is comprised of representatives from the International Union and the affiliated Employers, and which collectively control, manage, and operate the Program. On this basis, I find Mercier was a "participant" for purposes of ERISA during her apprenticeship in the Program.

Defendants further argue that even if Mercier was at one time a "participant," she lost her "participant" status after her termination from the Program. In Firestone Tire and Rubber Co. v. Bruch, the Supreme Court explained that under ERISA "the term 'participant' is naturally read to mean either employees in, or reasonably expected to be in, currently covered employment, or former employees who have . . . a reasonable expectation of returning to covered employment or who have a colorable claim to vested benefits." 489 U.S. 101, 117 (1989) (internal quotations and citations omitted). Defendants contend that following her termination, Mercier had neither a reasonable expectation of returning to the Program nor a "colorable claim to vested benefits," because apprenticeship benefits under the Program were not "vested benefits."

In 1997, however, the Supreme Court rejected the argument that a § 1140 ERISA retaliation claim applied only to "vested benefits." Inter-Modal Rail Employees Ass'n v. Atchison, Topeka and Santa Fe Ry. Co., 520 U.S. 510, 514 (1997). The Court noted that the plain language of § 1140 prohibited interference with "the attainment of any right to which such participant may become entitled under the plan." Id. The Court further explained:

Because a 'plan' includes an 'employee welfare benefit plan,' and because welfare plans offer benefits that do not 'vest' (at least insofar as ERISA is concerned), Congress' use of the word 'plan' in [§ 1140] all but forecloses the argument that [§ 1140's] interference clause applies only to 'vested' rights.

Id. at 514-15. Although Inter-Modal specifically addressed only § 1140 claims, I find that the same reasoning applies to claims under § 1132(a)(1)(B) and § 1132(a)(3), which also refer, respectively, to the "benefits" and "terms" of an ERISA "plan." I further find that Mercier's ERISA claims in connection with her participation in the Program satisfy the low threshold of being "colorable" in that they are "not frivolous." See, e.g., Local 2322, Intel Bhd. of Elec. Workers v. Verizon New Eng., Inc., 464 F.3d 93, 100 (1st Cir. 2006).

The First Circuit has adopted an expansive definition of the term "participant" in the context of ERISA standing. In Vartanian v. Monsanto Co., the court held that "[t]he ultimate question is whether the plaintiff is within the zone of interests ERISA was intended to protect." 14 F.3d 697, 701 (1st Cir. 1994) (quoting Astor v. Internat'l Bus. Mach. Corp., 7 F.3d 533, 538-39 (6th Cir. 1993)). That case involved an employee who timed his retirement based on assurances from his employer that no changes to his defined benefit plan were likely in the near future. Less than two months later, the plan was changed to include more generous benefits. The Vartanian court held that the former employee had standing as a "participant" under ERISA, and it approvingly cited a Fifth Circuit decision for the proposition that standing is appropriate where "but for the employer's conduct alleged to be in violation of ERISA, the employee would be a current employee with a reasonable expectation of receiving benefits, and the employer should not be able through its own malfeasance to defeat the employee's standing." Id. at 703 (quoting Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1221 (5th Cir. 1992), cert. denied, 506 U.S. 820 (1992)).

More recently, in Evans v. Akers, the First Circuit reaffirmed its "zone of interests" analysis from Vartanian. 534 F.3d 65, 71 (1st Cir. 2008). In Evans, several former employees sued their former employer for a breach of fiduciary duty in connection with a defined contribution plan. Although the former employees had already received their final lump-sum distributions from the plan and had no intention of returning to covered employment, the court held that they were within ERISA's "zone of interests" for purposes of standing. Id. The First Circuit repeated its observation from Vartanian that "Congress intended the federal courts to construe [ERISA's] jurisdictional requirements broadly in order to facilitate enforcement of its remedial provisions." Id. (quoting Vartanian, 14 F.3d at 702). The court accordingly refused to "draw arbitrary distinctions between current and former employees" with respect to ERISA standing. Id. at 75.

I find that Mercier, like the plaintiffs in Vartanian and Evans, is a "participant" within the meaning of ERISA irrespective of whether her efforts to reapply provided her with a "reasonable expectation of returning" to the Program. According to Mercier's allegations, the only reason she is no longer actively participating in and receiving benefits from the Program is that defendants breached their fiduciary duties and wrongfully terminated her. Denying Mercier standing under these circumstances would permit defendants to insulate themselves from ERISA liability by virtue of their own alleged malfeasance, an outcome which would be directly contrary to the remedial objectives of ERISA. For these reasons, I find that Mercier falls within ERISA's "zone of interests" and consequently has standing as a "participant" to bring ERISA claims against defendants in this case.

III. LOCAL RULE 56.1

Each party has objected to certain material in the opposing party's briefs and statements of material fact for noncompliance with Local Rule 56.1. This rule provides that on a motion for summary judgment, both the moving and non-moving parties shall submit a "concise statement of the material facts of record" for which that party contends there is (or is not) a genuine issue to be tried. Mercier claims that various factual assertions in defendants' briefs are absent from defendants' corresponding statements of material fact and are in some cases unsupported by the record. Defendants respond that Mercier's own statements of fact are improperly argumentative.

The First Circuit has explained its concern that absent rules such as Local Rule 56.1, "summary judgment practice could too easily become a game of cat-and-mouse, giving rise to the specter of district court judges being unfairly sandbagged by unadvertised factual issues." Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) (internal quotation omitted). For this reason, noncompliance with the rule may in some cases "justif[y] the court's deeming the facts presented in the [opposing party's statement of facts] admitted and ruling accordingly." Id. Although I recognize that defendants have at times failed properly to support their factual assertions by reference to the record, and that both parties have at times shrouded argument in the guise of statements of "fact," I find that a severe sanction is unwarranted in this case. I consequently decline to strike any portions of the parties' respective statements of fact or to deem any facts admitted based solely on violations of Local Rule 56.1.¹³ I will, of course, disregard arguments framed as factual assertions, and I will consider the "facts" asserted by each party only to the extent that they are supported by the record.

13 Accordingly, I will specifically deny Mercier's Motion to Strike Portions of Defendants' Response to Plaintiff's Statement of Material Facts. (Doc. 83.) The parties' other objections of this kind were sprinkled throughout their other filings.

IV. STANDARD OF REVIEW

A. Summary Judgment Standard

A court must grant summary judgment where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A "genuine" factual issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" when "it carries with it the potential to affect the outcome of the suit under the applicable law." Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (quotation omitted). Cross-motions for summary judgment do not alter the basic summary judgment standard, but rather require courts to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. Adria Intel Group, Inc. v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001). In deciding cross-motions for summary judgment, courts must consider each motion separately, drawing reasonable inferences against each movant in turn. Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).

B. Standard of Review under § 1132(a)(1)(B) ¹⁴

14 The Standard of Review discussion in this section and the following section applies only to Count I of Mercier's complaint, which is a claim for denial of benefits under 29 U.S.C. § 1132(a)(1)(B). For Count II (breach of fiduciary duty) and Count III (retaliation), the ordinary summary judgment standards apply.

The standard of review on summary judgment for a denial of ERISA plan benefits under 29 U.S.C. § 1132(a)(1)(B) differs from review in an ordinary civil case in two significant respects.

First, the First Circuit has held that on summary judgment in an ERISA benefit denial action "the non-moving party is not entitled to the usual inferences in its favor." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 517 (1st Cir. 2005), cert. denied, 546 U.S. 937 (2005).¹⁵ This is because, unlike in a typical civil case:

15 I note that the First Circuit has not always consistently articulated this point. Compare Wright v. R.R. Donnelley Sons Co. Group Benefits Plan, 402 F.3d 67, 74 (1st Cir. 2005) (holding that the operative inquiry on summary judgment in an ERISA benefit denial case was "whether the aggregate evidence, viewed in the light most favorable to the non-moving party, could support a rational determination that the plan administrator acted arbitrarily in denying the claim for benefits") (internal quotation omitted) with Liston v. UNUM Corp. Officer Severance Plan, 330 F.3d 19, 24 (1st Cir. 2003) (holding that "assuming that the decision is to be made by the judge based solely on the record made at the administrative level, summary judgment is merely a mechanism for tendering the issue and no special inferences are to be drawn in favor of a plaintiff resisting summary judgment.").

In an ERISA benefit denial case, trial is not usually an option: in a very real sense, the district court sits more as an appellate tribunal than as a trial court. It does not take evidence, but, rather, evaluates the reasonableness of an administrative determination in light of the record compiled before the plan fiduciary.

Leahy v. Raytheon Co., 315 F.3d 11, 17-18 (1st Cir. 2002). In this context, summary judgment does not serve as a screening mechanism but is "simply a vehicle for deciding the issue." Orndorf, 404 F.3d at 517.

Second, in some ERISA cases, the court must review a denial of plan benefits with deference to the original decision-maker. In Firestone, the Supreme Court determined that "a denial of benefits challenge under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." 489 U.S. at 115. The plan administrator bears the burden of demonstrating that its decision to deny benefits is entitled to deference. See Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999) ("[T]he party claiming deferential review should prove the predicate that justifies it.") (quotation omitted). The First Circuit has held that a benefits plan "must clearly grant discretionary authority" to the administrator for the administrator's decision to be entitled to deference. Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 583 (1st Cir. 1993) (emphasis added). The First Circuit has recognized, however, that "there are no 'magic words' determining the scope of judicial review of decisions to deny benefits." Brigham v. Sun Life of Canada, 317 F.3d 72, 81 (1st Cir. 2003) (internal quotation omitted).¹⁶

16 In Brigham v. Sun Life of Canada, the First Circuit endorsed Judge Posner's proposal to develop model "safe harbor" language in ERISA plans that would leave no doubt as to the administrator's grant of discretion. 317 F.3d 72, 81 (1st Cir. 2003) (citing Herzberger v. Standard Ins. Co., 205 F.3d 327, 331 (7th Cir. 2000) (Posner, J.)). The Brigham court acknowledged, however, that "until wording such as that suggested by Judge Posner becomes standard, we must in fairness carefully consider existing language that falls short of that ideal." Id.

If the ERISA benefit plan clearly grants the requisite discretionary authority to the administrator, "the administrator's decision must be upheld unless it is arbitrary, capricious, or an abuse of discretion." Wright v. R.R. Donnelley Sons Co. Group Benefits Plan, 402 F.3d 67, 74 (1st Cir. 2005) (internal quotation omitted). This standard means that the court must uphold the decision so long as it "was reasoned and supported by substantial evidence." Id. (internal quotation omitted). The First Circuit has further explained that "[e]vidence is substantial when it is reasonably sufficient to support a conclusion. Evidence contrary to an administrator's decision does not make the decision unreasonable, provided substantial evidence supports the decision." Id. (internal quotation and citation omitted). C. Discretionary Authority for Defendants

I find in this case that the Trust provided a sufficiently clear grant of discretionary authority to the National Board and the Northeast Area Committee to determine eligibility for benefits, such that the decision of those entities to terminate Mercier from the Program is entitled to a deferential standard of review.¹⁷ Unlike the origin documents of some ERISA benefit plans, the Agreement and Declaration of Trust in this case did not itself set forth any specific eligibility requirements for participation in the Program. Rather, the Trust created the National Board and the Area Committees and granted them discretion to collectively determine those requirements. The Agreement and Declaration of Trust defined the "Program" as "the plan or program for apprenticeship and other training, including standards, qualifications, eligibility requirements and all other phases thereof, to be established by the National Board and Area Committees pursuant to this Agreement and Declaration of Trust through National Standards, Area Standards and other media and action." (R. 10) (emphasis added).

17 Mercier emphasizes that although the Trust undeniably granted the National Board discretionary authority to "construe the terms of the plan" (or at least the terms of the Agreement and Declaration of Trust), a separate inquiry is required to determine whether the Trust also granted discretionary authority to "determine eligibility for benefits" under the Program. Although Mercier has cited, and I have found, no authority that clearly delineates between these two powers, I interpret the language from Firestone to indicate that they are not coterminous, and that a clear grant of discretionary authority is independently required for each.

The National Board and the Northeast Area Committee acted on this grant of authority to establish eligibility procedures and requirements for the Program. In the National Standards, the National Board included a set of model Area Standards that described, inter alia, the minimum qualifications for participation in the Program, the initial selection procedures for applicants, the basic form of the Apprenticeship Agreements, the term length of the apprenticeship, and the relative status of probationary apprentices. (R. 37-105.) The Northeast Area Committee adopted these model standards, without any meaningful alterations, as the Northeast Area Standards. (R. 106-57.)

The Trust also expressly granted each Area Committee "sole discretion to provide for advancement in the term of apprenticeship" (R. 20.), as well as the authority to make "rules and regulations . . . in connection with any and all matters coming within their . . . powers, duties and obligations." (R. 24-25.) I find that implicit in the Committee's authority to "provide for advancement" is also the authority to prevent advancement, including the power to suspend or terminate unsuccessful or problematic apprentices. It was therefore within the Committee's discretion to establish a set of regulations and disciplinary rules governing the consequences of behavior detrimental to the Program.

To be sure, the authority to promulgate rules does not by itself indicate that a person or entity has discretionary authority to "determine eligibility benefits" under the Firestone standard. In Kirwan v. Marriott Corp., for example, the Eleventh Circuit held that "the grant of authority . . . to promulgate rules and regulations is merely a grant of administrative powers . . . insufficient to trigger application of the arbitrary and capricious standard." 10 F.3d 784, 789 (11th Cir. 1994). In that case, the eligibility requirements for benefits were defined in the benefit plan itself, id. at 786, and the administrator in question merely had the authority to promulgate rules to "administer the plan" and to deny benefit claims pursuant to its terms. Id. at 788. In this case, by contrast, the Northeast Area Committee had the authority both to establish eligibility requirements for the Northeast Area through the Area Standards, and also to implement those standards by promulgating rules and regulations in the Handbook. Although the Area Standards were required to be consistent with the National Standards and were subject to approval by the National Board, I find that the Trust's grant of discretionary authority to the Northeast Area Committee was sufficient to entitle its eligibility determinations to a deferential standard of review.

One potential wrinkle in the present case arises from the handling of Mercier's appeal to the National Board. According to the Agreement and Declaration of Trust, the National Board has the power to "[s]ettle appeals of decisions rendered by [Area Committees]." (R. 18.) In this case, after "much discussion," the National Board voted unanimously to "refer [Mercier's] appeal back to the Northeast Area Committee for their reconsideration." (R. 281.) Under ERISA, the delegation of discretionary authority generally requires "[t]he instrument under which a plan is maintained" to "expressly provide for procedures . . . for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities . . . under the plan." 29 U.S.C. § 1105(c)(1). See also Rodriguez-Abreu, 986 F.2d at 584 (applying a de novo standard of review where the defendant decision-maker "fail[ed] to point to any plan provisions which provide express procedures for the delegation of the [administrator's] discretionary authority to a delegate."). It is significant, however, that the Trust provides the National Board with "the power to construe the provisions of this Agreement and Declaration and Trust." (R. 32.) I find that the National Board's referral of Mercier's case back to the Northeast Area Committee, with instructions to engage in further reconsideration, could reasonably be construed as a manner of "settling" the appeal under the terms of the Trust.¹⁸ For these reasons, I find that the Northeast Area Committee's decision to terminate Mercier's participation in the Program and the National Board's implicit endorsement of the Committee's authority to make that decision must be upheld unless Mercier shows that they were arbitrary, capricious, or an abuse of discretion.

18 At the same conference at which the National Board voted to refer Mercier's appeal back to the Northeast Area Committee, the Board voted unanimously to "amend the . . . National Standards to eliminate an apprentice's right to appeal a termination from the program to the National Board." (R. 283.) For this reason, Mercier was not permitted to further appeal the Northeast Area Committee's final decision on termination back to the National Board. Although the Trust grants the National Board authority to amend the Agreement and Declaration of Trust, there is nothing in the record to suggest the provision in that document granting the National Board power to "[s]ettle appeals of decisions rendered by [Area Committees]," (R. 18.) has ever been removed. It is therefore unclear whether the National Board's amendment to the National Standards, removing the right of an apprentice to appeal to the Board, was consistent with the terms of the Agreement and Declaration of Trust. Neither party, however, has addressed this issue in their briefing, and it is not material to the issues before me.

V. DISCUSSION

A. Count I — Claim for Denial of Benefits

Mercier alleges in Count I that the decision to terminate her from the Program was arbitrary and capricious because it was directly contrary to the terms of the Program as set forth in the National Standards, the Northeast Area Standards, and in the Handbook. Mercier claims that at the time of her termination, she had completed over 1000 hours of on-the-job training and was therefore no longer a "probationary employee" subject to termination at will. Accordingly, by the terms of the Handbook, her "first offense" for providing false information on Work Reports should have resulted in a 30-day suspension, rather than outright termination. In the alternative, Mercier argues that even if she were a "probationary employee," the Handbook would prescribe a suspension of 60 days, not termination.

In evaluating the merits of these claims, I will follow "[t]he ordinary rule . . . that review for arbitrariness is on the record made before the entity being reviewed." Liston v. UNUM Corp. Officer Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003). In this case, that is the administrative record submitted jointly by the parties and encompassing the materials that were available to the Northeast Area Committee and the National Board. As the First Circuit has explained, this rule "is almost inherent in the idea of reviewing agency or other administrative action for reasonableness; how could an administrator act unreasonably by ignoring information never presented to it?" Id. I will consequently deny Mercier's Rule 56(f) motion for additional discovery as it pertains to Count I, because I do not find any "very good reason" to overcome the "strong presumption" of restricting review to the administrative record. Id. 1. Mercier's Status as a Probationary Employee

Mercier's contention that she was not a probationary employee at the time of her termination is based on records allegedly showing that she had, in fact, worked over 1000 hours of on-the-job training in 2003 and 2004. An apprentice's working hours are tracked by several different sources. In addition to the Work Reports filled out by each apprentice and submitted to a supervisor for verification, there are reports prepared by the shop steward at each work site ("Steward Reports"), reports compiled by the union's pension trust ("Pension Reports"), and reports prepared by the apprentice's various employers for payroll purposes ("Payroll Reports").

Mercier's monthly Work Reports for the years 2003 and 2004 reported, respectively, 279 hours and 1074 hours, for a total of 1353 hours. As Jerry Williams discovered, however, when he reviewed Mercier's reports, her 2004 Work Reports included hours far exceeding the corresponding Steward Reports. For example, Mercier's April 2004 Work Report showed her working 240 hours for the employer Nicholson Hall (R. 210), whereas the corresponding Steward Reports showed only 183.5 hours (R. 228-231), a discrepancy of nearly 60 hours in a single month. According to the information collected by Williams prior to his decision to terminate Mercier from the Program, Mercier had taken credit for "close to 400 hours she never worked." (R. 237.) Subtracting these falsely reported hours from Mercier's total reported hours would bring Mercier below the 1000 hour probationary apprentice threshold.

According to Mercier, the other "more objective" records of her working hours reveal she had actually exceeded 1000 hours of on-the-job training at the time of her termination. In particular, Mercier's Pension Reports show that she had worked a total of 1269.5 hours by October 2004. (R. 252.) This total includes approximately 600 hours from 2003 (R. 254), far more hours than Mercier reported in her Work Reports for that year. On this basis, Mercier has argued that she under-reported hours on many of her 2003 Work Reports, and that even discounting the hours she later over-reported in 2004, her total number of hours actually worked in the Program exceeded 1000 hours.¹⁹

19 Defendants argue that many of the hours that appear in the Pension Reports but not in Mercier's Work Reports were hours Mercier worked "outside the Program," which could not be credited toward the 1000 hour probationary apprentice threshold. Although this contention would, if true, explain Mercier's apparent underreporting in 2003, there appears to be no support for it in the administrative record. Defendants rely heavily on the handwritten notation "permit" on several of Mercier's 2003 Steward Reports (R. 217-21), claiming this is evidence that Mercier worked certain hours by "permission" of the union but outside her apprenticeship term. Defendants cite no evidence, however, in support of their interpretation of the "permit" notation. I will therefore assume for purposes of this motion that the hours appearing in Mercier's Pension Reports could have counted toward the 1000 hour threshold if she had properly reported them in her Work Reports.

I nevertheless find that it was not arbitrary or capricious for the Northeast Area Committee to use apprentice Work Reports as the baseline for calculating apprentice hours in the Program, and to accordingly credit Mercier only with the hours she accurately reported in her Work Reports. It is true that the Program documents do not expressly describe the method for calculating hours to determine probationary status. The Northeast Area Standards do, however, indicate that "[e]ach apprentice shall be responsible for maintaining a record of his/her work experience/training on the job . . . and for having this record verified by his/her supervisor every month." (R. 121.) The Handbook emphasizes that "[t]he Apprentice, not the supervisor or any one else, is responsible for complete completion of the Work Report." (R. 161.) The Area Standards further explain that the Work Reports will be kept in the "apprentice's record file" and that "[b]efore each period of advancement, or at any other time when conditions warrant, the [Area Committee] shall evaluate the apprentice's record to determine whether he/she has made satisfactory progress." (R. 122.) By contrast, nowhere in any of the Program documents are any other sources for measuring an apprentice's hours mentioned. In using Work Reports, which are inherently a measure of apprentice attentiveness and accuracy, as the baseline measurement, it was not unreasonable for the Committee to deem it irrelevant whether other types of reports could have shown Mercier had at times under-reported her training hours. Indeed, under-reporting is simply another form of inaccuracy in keeping and providing work reports.

Furthermore, simply because the Committee did not use other sources to calculate apprentice hours does not mean it was "inconsistent," as Mercier claims, for the Committee to rely on these other sources to verify the accuracy of her submitted Work Reports. This is especially true given the unusual circumstances under which Mercier's reports were submitted. Mercier had neglected to submit Work Reports for June 2003 through June 2004 until more than a full year had passed, and the reports she eventually submitted reported far more hours than she had reported in 2003. Given that a probationary apprentice is only given "full credit" for the probationary period when he or she has been "evaluated as satisfactory after a review of the probationary period" (R. 116), it was entirely reasonable for Jerry Williams to cross-reference Mercier's Work Reports with the Steward Reports before giving her credit for the reported hours.

As an additional argument, Mercier contends that there is no evidence in the record the Northeast Area Committee actually determined her to be a probationary employee by this method in reaching its decision to terminate her, and that the defendants' allegedly "retroactive" reasoning should not be credited. This claim, however, is belied by the record. Jerry Williams's letter to David Dupuis requesting Mercier's termination from the Program on December 7, 2004, specifically identified Mercier as a "Probationary Apprentice." (R. 237.) Furthermore, the Minutes of the hearing before the Northeast Area Committee show that David Dupuis explained to Mercier that apprentice hours under the Program were "tracked by the work reports the apprentice gives to the [Northeast Area Committee] Office . . . and the Pension Department does not have anything to do with apprentice hours." (R. 257.) Mercier herself acknowledged that the Northeast Area Committee had explained its position to her when she observed in her appeal to the National Board that "according to [the Northeast Area Committee] I had not completed my 1000 hours' probationary period." (R. 270.)²⁰

20 Mercier's further claim that defendants did not provide her with sufficiently "specific reasons" for her termination is addressed in section V.B, infra, in connection with Mercier's Count II claim for Breach of Fiduciary Duty.

It was also not inconsistent, as Mercier has argued, for the Committee to provide Mercier with notice, a hearing, and an appeal, even though these were not required steps for terminating a probationary apprentice. For one thing, the Northeast Area Standards expressly "recommend[] . . . that records be maintained indicating why a probationary apprentice is terminated." (R. 116.) Furthermore, in Mercier's case, her designation as a probationary employee was contingent on the Committee confirming Jerry Williams's conclusion that her Work Reports were indeed false. If Mercier could somehow have shown the Work Reports were accurate, she would have been deemed a post-probationary employee and would have been fully entitled to a hearing and an appeal. The decision by the Committee to provide those procedures was appropriate when the matters at issue concerned Mercier's status as an apprentice entitled to such protections. More fundamentally, it would create a perverse disincentive to discourage the use of such protective procedures by making their deployment the basis for some sort of adverse evidentiary inference.

2. Termination for Mercier's "first offense"

Mercier further argues that even if she were properly deemed a probationary employee at the time of her termination, the Handbook dictates that her punishment for a first offense should have been a 60 day suspension, rather than termination. The Handbook provides that an apprentice's "first offense" for "[p]roviding any false information" in a Work Report should result in a 30 day suspension, and the "second offense" should result in "termination from the apprenticeship program." (R. 161.) The Handbook further provides that "[d]uring [the] probationary period, any suspension provided in these Regulations shall be, automatically, doubled"; but, the Handbook adds, "Termination is not affected by this provision." (R. 165.)

The parties dispute whether the term "first offense" should apply to Mercier's extended failure to provide the Program with accurate information regarding her hours, first by neglecting to submit her Work Reports for over a year and then by submitting multiple Work Reports with false information. Defendants claim that under the Handbook's disciplinary framework Mercier's conduct amounted to "multiple offenses," subject to termination from the Program. This interpretation of the Handbook is, however, highly questionable in the context of a progressive disciplinary scheme, where increasingly severe penalties are imposed for subsequent offenses to provide a deterrent against future misconduct. See, e.g., Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1515 (10th Cir. 1995) (describing a progressive discipline scheme). To terminate Mercier for her "second offense" without ever disciplining her for her "first offense" would run contrary to the policy underpinning the progressive discipline procedures described in the Handbook. Cf. id. at 1516 (recognizing that an employer's failure to follow progressive discipline procedures may provide the basis for a wrongful discharge claim).

As a probationary apprentice, however, Mercier had ample notice that the Committee could terminate her from the Program at will, regardless of which step she had reached on the progressive discipline ladder. Both the Northeast Area Standards and Mercier's April 9, 2003 Apprentice Agreement indicated that a probationary apprentice could be terminated without stated cause. Each individual Work Report filled out and submitted by Mercier also indicated on its face that "[a]ny falsification of this document will result in immediate termination from the NE Area Program." (R. 299) Although this instruction appears to be inconsistent with the Handbook's progressive discipline scheme for post-probationary employees, for a probationary employee like Mercier it provided an additional reminder of the potential consequences of submitting even a single false report.

Lastly, the Handbook itself makes clear that with respect to probationary employees "[t]ermination is not affected" by the provision "doubling" the length of suspensions. The plain meaning of this passage is that the power of the Northeast Area Committee to terminate a probationary apprentice at will remained unchanged by the other penalties listed in the Handbook. Mercier's reading to the contrary — that the "specific" Handbook provision imposing a 30-day suspension should trump the "general" rule of termination at will — is unpersuasive. That reading would lead to the anomalous result that the Northeast Area Committee could legitimately terminate a probationary apprentice for no reason, but could only impose a suspension (albeit doubled in length) for a probationary apprentice who committed one of the enumerated transgressions in the Handbook.

For these reasons, I conclude that the Northeast Area Committee's decision to terminate Mercier from the Program for falsifying information on her Work Reports was not arbitrary or capricious. I will accordingly grant summary judgment for the defendants as to Count I.

B. Count II — Claim for Breach of Fiduciary Duty

Mercier claims in Count II that she is entitled to relief under § 1132(a)(3) because defendants breached their fiduciary duties²¹ by: (1) terminating her in violation of the Program's terms, and (2) failing to provide either adequate notice of her termination or a full and fair review of her appeal.

21 It is uncontested that the National Board and the Northeast Area Committee are fiduciaries to the Program. (Doc. 39 at ¶ 3.)

Under § 1132(a)(3), a participant or beneficiary of an ERISA plan may bring a civil action: "(A) to enjoin any act or practice which violates any provision of [ERISA] or the terms of the plan, or (B) to obtain other appropriate equitable relief (I) to redress such violations or (ii) to enforce any provision of [ERISA] or the terms of the plan." The Supreme Court has held that in certain circumstances, individual plan participants may seek relief under this "catch-all" provision for a plan administrator's breach of fiduciary duty. See Varity Corp. v. Howe, 516 U.S. 489, 507-15 (1996). As a general rule, claims for breaches of fiduciary duty, unlike denial of benefits claims, are addressed in the first instance by a district court and require no deference to any administrator's action or decision. See Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 427 (6th Cir. 2006). The Supreme Court has held, however, that a plaintiff cannot simply repackage a denial of benefits claim as a breach of fiduciary duty claim in order to avoid the application of deferential review. See Varity, 516 U.S. at 514. In this case, Mercier's claim that defendants breached their fiduciary duty by wrongfully terminating her from the Program is effectively identical to her denial of benefits claim under § 1132(a)(1)(B), a matter I have discussed fully and rejected in Section V.A, supra. I will at this point therefore address only her claim that defendants failed to provide adequate notice of her termination or a full and fair review of her appeal.

Under ERISA, an employee benefit plan is required to:

(1) provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant, and

(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

29 U.S.C. § 1133. These requirements, and the regulations promulgated in connection with them — see 29 C.F.R. 2560.5031(f)-(h) — "are designed to afford the beneficiary an explanation of the denial of benefits that is adequate to ensure meaningful review of that denial." Glista v. UNUM Life Ins. Co. of Am., 378 F.3d 113, 129 (1st Cir. 2004) (quoting Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992)). So long as the plan participant is provided a sufficient explanation to formulate further challenges to the denial, it is not necessary for an administrator to provide "the reasoning behind the reasons." Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996), cert. denied, 521 U.S. 1129 (1997). As Judge Posner explained in Gallo, "All [the administrator] has to give the applicant is the reason for the denial of benefits; he does not have to explain why it is a good reason." Id. at 923 (emphasis in original); see also Cole v. Cent. States Southeast and Southwest Areas Health and Welfare Fund, No. 03-2391, 2004 WL 1335920, * 1 (1st Cir. 2004) (per curiam) (holding that the requirements of § 1133 are satisfied "so long as the claimant is 'supplied with a statement of reasons that, under the circumstances of the case, permit[] a sufficiently clear understanding of the administrator's position to permit effective review.'") (quoting Halpin, 962 F.2d at 690).

In this case, I find the defendants sufficiently complied with the requirements of § 1133 to fulfill their fiduciary duties. Although Mercier was not provided at each step of her appeals with extended reasoning behind the decision to terminate her, and at several steps was not provided with any written reasons at all, ²² she received adequate information about those reasons to permit effective review, both during the internal appeals process and now in this proceeding. In Jerry Williams's November 5, 2004 letter, he explained that: (1) some of Mercier's Work Reports were signed by the wrong supervisory personnel, and (2) the Work Reports reported hours in excess of the hours shown on the Steward Reports. (R. 196.) The December 7, 2004 letter Mercier received from David Dupuis indicated that the reason for her termination was "Falsification of Documents." (R. 238.) Furthermore, with regard to Mercier's status as a probationary apprentice, David Dupuis explained at the Northeast Area Committee hearing — with Mercier present — that the Committee tracks apprentice hours by Work Reports alone and not by reference to the Pension Reports. (R. 257.) In Mercier's appeal to the National Board, she expressly argued that the Committee had incorrectly deemed her a probationary employee and had improperly terminated her for her first offense of falsifying Work Reports. It is apparent that Mercier had a sufficiently clear understanding of the Northeast Area Committee's positions regarding its decision to terminate her to permit effective review of that decision.

22 For example, neither the January 13, 2005 letter (R. 267) nor the June 8, 2005 letter (R. 377) from the Northeast Area Committee provided any specific reasons for upholding Mercier's termination. Nor were any reasons included in the Minutes of the National Board's conference to explain the referral of Mercier's appeal back to the Northeast Area Committee. (R. 281.) At the hearing in this matter, defense counsel tried to elaborate further the reasons for the National Board's referral and for the Committee's ultimate denial of the appeal. Because there is no support in the record for his account, I reject this effort to supplement the administrative record orally.

Furthermore, I find that Mercier had a reasonable opportunity for a "full and fair review" of her termination. Following the initial termination letter, Mercier attended the hearing before the Northeast Area Committee, where she had the opportunity to offer an explanation for the discrepancies in her Work Reports, to describe her basis for believing she was not a "probationary" employee, and to argue that a suspension would be a more appropriate sanction than termination. After the Committee's decision, Mercier was able to appeal to the National Board and submit a memorandum of reasons to argue her position further. I find that these procedures were sufficient to satisfy both the terms of the Program and the requirements of § 1133.

I will deny Mercier's Rule 56(f) motion for further discovery in connection with this claim. In some ERISA claims relating to § 1133, discovery of material beyond the administrative record may be appropriate where "the decisional process is too informal to provide a record," Liston, 330 F.3d at 23, or "the challenge is not to the merits of the decision to deny benefits, but to the procedure used to reach the decision," Orndorf, 404 F.3d at 520. In this case, however, I find that the administrative record is sufficient to determine that Mercier received adequate notice of the reasons for her termination and a full and fair review of her appeal. So finding, I will grant summary judgment to defendants as to Count II.

C. Count III — Claim for Retaliation

Mercier's third count alleges that defendants wrongfully retaliated against her by failing to readmit her to the Program in response to her legal challenge of her termination. Because I find material issues of fact remain unresolved in connection with this claim, I will deny summary judgment to both parties.

1. The Record

Unlike a denial of benefits claim under 29 U.S.C. § 1132(a)(1)(B), a claim of interference or retaliation under § 1140 is generally not limited to a review of the administrative record. See e.g., Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995) (summary judgment on § 1140 claim was considered only "[a]t the close of discovery"), cert. denied, 516 U.S. 1113 (1996); Dister v. Continental Group, Inc., 859 F.2d 1108, 1110 (2d Cir. 1998) (indicating "extensive discovery" was permitted in a § 1140 claim). In connection with Count III, Mercier has filed a supplemental affidavit asserting facts beyond the scope of the administrative record, as well as a motion under Fed.R.Civ.P. 56(f) requesting additional discovery.

Defendants raise several specific objections to Mercier's supplemental affidavit.²³ First, defendants assert there is "no support" for paragraph 4 of Mercier's affidavit, which describes the encouragement Mercier received from Jerry Williams to reapply for admission to the Program. In response, Mercier has filed an additional supplemental affidavit describing her conversation with Williams in more detail. Even in the absence of this elaboration, I would find that Mercier's account of her conversation with Williams was based on her own personal observations, and I will accordingly deny defendants' objection.

23 Defendants also contend that Mercier's affidavit is deficient on its face for failing expressly to assert that it was based on personal knowledge or that Mercier is competent to testify to the matters described therein. To the extent the affidavit establishes Mercier's personal knowledge and competency by its own terms, I find this argument to be without merit. See 2-17 Moore's Manual: Federal Practice and Procedure (2008), § 17.40[3][b] ("Proof of personal knowledge may be established through specificity included in the affidavit . . . [and in] some circumstances . . . may be inferred from the context.")

I also deny defendants' objections to paragraphs 6, 8, 9 and 10 as being based on "conjecture and supposition." Defendants challenge Mercier's personal knowledge of "the status of certain of the persons with whom she claims she talked," as described in those paragraphs. The administrative record in this case, however, seems to support Mercier's account with respect to Jerry Williams and Howard Smith. Furthermore, to the extent Mercier's descriptions are not independently confirmed by the record, I will consider them merely to indicate the status that the individuals ascribed to themselves in their conversations with Mercier, which falls well within Mercier's personal knowledge.

Next, defendants note that paragraph 5, in which Mercier describes the termination and readmission of another apprentice in the Program, was based only on Mercier's "information and belief," rather than her personal knowledge. In subsequent briefing, Mercier has clarified that this paragraph was intended not to assert the truth of the matter contained therein but rather as a good faith representation of the existence of potentially discoverable information in connection with her Rule 56(f) motion. I will accept it for that limited purpose.

Finally, defendants object to the admissibility of Mercier's testimony regarding certain settlement communications between her counsel and defendants' counsel. Although evidence of settlement communications may generally not be considered when it is offered to prove liability or the amount of a claim, the Federal Rules of Evidence expressly permit its admission for other purposes. See Fed.R.Evid. 408(b). In this case, the testimony is offered as evidence of defendants' retaliatory conduct in response to Mercier's assertion of her legal claims, and I will allow it for that purpose. See Carney v. American Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998) ("[S]ettlement letters . . . can be used to establish an independent violation (here, retaliation) unrelated to the underlying claim which was the subject of the correspondence."). I will address the resolution of Mercier's Rule 56(f) motion following a discussion of the merits of Mercier's § 1140 claim.

2. Legal Framework under § 1140

Under 29 U.S.C. § 1140,

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan [or ERISA] . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan [or ERISA].

By its terms, the statute provides two bases on which it is impermissible to take adverse actions against an ERISA plan participant: first, as retaliation for the exercise of certain ERISA rights; second, for the purpose of interfering with the participant's rights under an ERISA plan or the ERISA statute.²⁴ See, e.g., Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 66-67 (1st Cir. 2008) (discussing, in the context of § 1140, adverse action that is "retaliatory" and not merely "interfering"). Although Mercier in her complaint asserts both retaliation for exercise of her ERISA rights and interference with the attainment of ERISA benefits (Doc. 42 at ¶¶ 51-52), she appears to have conceded, at least for purposes of summary judgment, that she did not necessarily have a "right" to readmission under the Program. (Doc. 78 at 8.) I will consequently address the merits of Mercier's § 1140 claim only with respect to her allegations of retaliation.

24 It is, of course, possible for a particular adverse action to be both retaliatory and interfering; but either of these bases would separately be sufficient to establish violation of the statute.

Retaliation claims under § 1140 are evaluated under the three-step burden-shifting framework established in the context of Title VII claims.²⁵ See Kouvchinov, 537 F.3d at 67 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)). The First Circuit has explained that it "regard[s] Title VII, ADEA, ERISA, and FLSA as standing in pari passu and endorse[s] the practice of treating judicial precedents interpreting one such statute as instructive in decisions involving another." Serapion v. Martinez, 119 F.3d 982, 985 (1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998). Under this three-step framework, first the plaintiff must set forth a prima facie case of retaliation. See Kouvchinov, 537 F.3d at 67. This requires showing that: (1) the plaintiff was engaged in protected conduct, (2) the plaintiff was subject to a prohibited adverse action by defendants, and (3) there was a causal connection between the protected conduct and the adverse action. See Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 84 (1st Cir. 2006) (describing the elements of a prima facie case of retaliation under Title VII). At the prima facie stage, the plaintiff's burden of proof is modest. See Barbour, 63 F.3d at 38. Second, if the plaintiff demonstrates a prima facie case, the burden of production shifts to the defendant, who must articulate a legitimate, non-retaliatory reason for the adverse action against the plaintiff. See Kouvchinov, 537 F.3d at 67. Third, if the defendant meets this burden, the plaintiff must show that the reasons given by the defendant are merely a pretext for retaliation. See id. A plaintiff must ultimately make a "plausible showing of specific intent in order to survive summary judgment on an ERISA retaliation claim." Id. 3. Prima Facie Case of Retaliation a. Protected Conduct

25 Claims under § 1140 for interference with the attainment of a participant's ERISA benefits are evaluated under the same three-step framework. See Barbour v. Dynamics Research Corp, 63 F.3d 32, 37-38 (1st Cir. 1995).

I find that Mercier's legal challenge to her termination from the Program satisfies the "protected conduct" element of her retaliation claim.²⁶ Section 1140 provides protection for retaliation against the exercise of any right to which a participant is entitled under an ERISA plan or under the ERISA statute. See 29 U.S.C. § 1140. As discussed in sections V.A and V.B, supra, ERISA provides the right to bring a civil action under § 1132 for a denial of benefits or a breach of fiduciary duty. The exercise of these rights to bring a legal action can constitute protected conduct giving rise to a claim of retaliation under § 1140. See Schwartz v. Gregori, 45 F.3d 1017, 1020-21 (6th Cir. 1995) (upholding a § 1140 claim where the plaintiff was discharged in retaliation for bringing an ERISA action under § 1132), cert. denied, 516 U.S. 819 (1995).

26 Mercier also contends that her internal appeals to the Northeast Area Committee and the National Board were "protected conduct" giving rise to a claim of retaliation. She does not, however, assert any evidence of a causal link between the internal appeals and defendants' refusal to readmit her to the Program. To the contrary, Mercier has asserted that two of defendants' agents — Jerry Williams of the Northeast Area Committee and Harold Smith of the National Board — encouraged and assisted her in the readmission process after the denial of her appeals. I consequently find that Mercier's internal appeals do not provide an adequate basis for her § 1140 retaliation claim.

It is true that at the time of defendants' allegedly retaliatory conduct, Mercier had presented her legal challenge to her termination not as an ERISA action, but as state common law claims. It was not until the case was removed to federal court and defendants filed a motion to dismiss on grounds of ERISA preemption that Mercier amended her complaint to characterize her claims expressly as ERISA causes of action. I find, nevertheless, that Mercier's communications with defendants regarding her potential litigation and her eventual Massachusetts state court complaint provided sufficient notice to defendants that her legal challenge was, in reality, a claim for denial of benefits under ERISA. In reaching this conclusion, I look to the rationale behind the federal notice pleading requirements of Fed.R.Civ.P. 8. It is well established under this rule that "[i]t is the facts well pleaded, not the theory of recovery or legal conclusions, that state a cause of action and put a party on notice." Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999) (internal quotation omitted), cert. denied, 531 U.S. 873 (2000). Defendants, of course, were well aware that the basis for Mercier's action was her allegedly wrongful termination from the Program. Defendants, as administrators of the Program, understood that the Program was an ERISA-governed employee welfare plan. It was, after all, defendants who immediately identified Mercier's state court action as being "founded on a claim to secure benefits under an ERISA-governed plan" and consequently submitted a timely Notice of Removal to federal court. Defendants clearly had sufficient understanding during the period of alleged retaliation that Mercier's legal challenge came within ERISA protection.

It is also true, as I have concluded above, that Mercier's underlying ERISA claims for denial of benefits in Count I and breach of fiduciary duty in Count II must fail on summary judgment. This does not, however, mean that Mercier's efforts to press those claims through litigation were not "protected conduct" for purposes of her retaliation claim. In the related context of Title VII, courts have repeatedly recognized that claims for retaliation may proceed even where the underlying claims that provoked retaliation were ultimately unsuccessful. See, e.g., Crawford v. Metro. Gov't of Nashville and Davidson County, 555 U.S. ___, 2009 WL 160424 (Jan. 26, 2009) (reversing summary judgment for a claim of retaliation against an employee who reported sexual harassment by a co-worker, even where no action was ultimately taken on the initial claim of harassment). In this case, Mercier had at least a colorable basis to file legal claims under § 1132(a)(1)(b) and § 1132(a)(3), and I find her right to press those claims was entitled to protection from retaliation.

b. Prohibited Adverse Action

It is next necessary to consider whether defendants' failure to readmit Mercier to the Program qualifies as the type of adverse action prohibited by § 1140. Under the statute, it is impermissible "to discharge, fine, suspend, expel, discipline, or discriminate against" an ERISA participant for engaging in protected conduct.

Some case law has suggested application of § 1140 should be limited to actions where the defendant's conduct had an adverse effect on an existing employer-employee relationship. See, e.g., West v. Butler, 621 F.2d 240, 245 (6th Cir. 1980) ("The legislative history [of § 1140] reveals that the prohibitions were aimed primarily at preventing unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights."). In Becker v. Mack Trucks, Inc., the Third Circuit held that § 1140 did not apply to an employer's refusal to rehire employees previously laid off in order to avoid paying them certain benefits under an ERISA plan. 281 F.3d 372, 381 (3d Cir. 2002), cert. denied, 537 U.S. 818 (2002). The Becker court explained that "a failure to hire does not amount to a circumvention of promised benefits because job applicants who have yet to be hired have not been promised any benefits." Id. at 382. See also Andersen v. Chrysler Corp., 99 F.3d 846, 856 (7th Cir. 1996) ("[Section 1140] applies only in instances in which an employer wrongfully alters the employment relationship to prevent benefit rights from vesting."). While Becker dealt with a claim for interference with ERISA rights, another case relied on by defendants — Byrd v. MacPapers, Inc., 961 F.2d 157 (11th Cir. 1992) — applied the same employer-employee limitation in the context of a retaliation action. In that case, the court noted that the plaintiff "concede[d] that Sun Life is not a proper party to the appeal because only an employer can be sued in a [§ 1140] retaliation action." Id. at 161.

To the extent these cases can be read to establish limitations applicable to a retaliation claim by a quondam participant who seeks to challenge through litigation her termination as improper under ERISA, I find them unpersuasive. In the related context of Title VII, the Supreme Court has held that "[t]he scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm." Burlington Northern Santa Fe Ry Co. v. White, 548 U.S. 53, 67 (2006). The Court noted that the substantive provisions of Title VII and its anti-retaliation provision serve two different purposes, justifying a different scope of actionable behavior. The Court explained that "[i]nterpreting the anti-retaliation provision to provide broad protection from retaliation helps assure the cooperation upon which accomplishment of the Act's primary objective depends." Id. The anti-retaliation provision was therefore found to apply wherever the retaliatory behavior was such that "it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (internal quotation omitted).

In Mattei v. Mattei, the Sixth Circuit reached a similar conclusion with respect to the scope of adverse actions subject to ERISA retaliation claims. 126 F.3d 794, 806 (6th Cir. 1997), cert. denied, 523 U.S. 1120 (1998). The Mattei court looked to the anti-retaliation provisions of Title VII and the Age Discrimination Employment Act (ADEA), and noted that both are consistently interpreted to forbid "any kind of adverse action against an individual because he has engaged in the protected activity." Id. at 805 (emphasis in original). The court held, therefore, that "the list of proscribed actions [in § 1140] represents a kitchen-sink attempt at comprehensiveness, rather than a limitation by way of expressio unius, and should be construed to mean 'any adverse action,'" even where there was no effect on an existing employment relationship. Id. at 806. Although the First Circuit does not appear yet squarely to have addressed this issue, ²⁷ its broad "zone of interests" approach to ERISA standing in Vartanian and Evans suggests it would take a functional rather than wooden approach to determining the scope of protections from adverse action. See Evans, 534 F.3d at 75 (rejecting a "restricted view of standing" under ERISA that would permit "arbitrary and unjust results"). Moreover, I am persuaded by the Sixth Circuit's reasoning in Mattei, and I find that § 1140 prohibits retaliation by means of any "adverse action" that might dissuade a reasonable worker from exercising his or her rights under ERISA. Under this rule, I find Mercier has met her burden of showing that defendants' refusal to readmit her to the Program, if done with retaliatory intent, would constitute prohibited adverse action under § 1140.

27 I note that my colleague Judge Lasker has held that an adverse effect on an existing employer-employee relationship is not required to state a claim under § 1140. See Choi v. Massachusetts Gen. Physicians Org., 66 F. Supp. 2d 251, 253-54 (D. Mass. 1999). Choi, however, involved a § 1140 claim for interference with the attainment of ERISA benefits, not for retaliation against the exercise of ERISA rights.

c. Causal connection

I find that on the record before me, there remain genuine issues of fact as to the causal connection between Mercier's exercise of her ERISA rights and defendants' adverse action in refusing her application for readmission.

There is some evidence in the record from which a reasonable finder of fact could conclude that Mercier's intention to challenge her termination by litigation was the direct cause of defendants' refusal to readmit her to the Program. According to Mercier's supplemental affidavit, before she communicated her intention to pursue legal action, several union officials involved with the Program actively encouraged her to reapply.²⁸ At one point, Mercier was informed she would be in the next group of applicants considered for readmission. At another point, she was asked to reaffirm her interest in being eligible for readmission. Despite these indications that her application would be fairly considered, however, Mercier never received a direct response from the Program regarding her readmission status. After Mercier's attorney notified defendants of Mercier's intention to pursue legal action, defendants' counsel replied by letter that it "was unlikely that the Program would readmit [Mercier] with tort claims pending against the Program" and that he planned to "recommend to the Trustees that they withhold action on her application until her claims have been resolved." Based on this sequence of events and defendants' counsel's subsequent correspondence, it would not be unreasonable to conclude that a causal connection existed between Mercier's intention to exercise her litigation rights and defendants' adverse action.

28 Defendants contend that the individuals who encouraged Mercier to reapply were not their agents, but were merely representatives of Mercier's local union. The administrative record reveals that both Jerry Williams and Harold Smith were members of the defendant entities: Williams as a member of the Northeast Area Committee (R. 256) and Smith as the National Coordinator of the Program for the National Board. (R. 272.) According to Mercier, the other local union officials with whom she dealt, such as Joseph Berrolini, also had "apparent authority" to act on behalf of the Program under principles of agency law. Cf. Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 865 n. 15 (7th Cir. 1998) (looking to federal common law agency principles in an ERISA case).

There remain, however, a variety of unanswered questions regarding Mercier's application for readmission. For one thing, it is unclear to what extent readmission was available to any apprentice following termination from the Program. Defendants have argued that under the terms of the Apprentice Agreement Mercier signed on March 28, 2003, there was a categorical rule prohibiting terminated apprentices from seeking reinstatement through the normal application procedure. (R. 177 at ¶ 9.) Although the validity and legal effect of the March 28 agreement is questionable, ²⁹ the only evidence in the record suggesting that readmission was generally permissible is the apparent encouragement Mercier received from certain local union officials and Mercier's assertion on "information and belief" that other terminated apprentices had been readmitted.

29 As Mercier has pointed out, the March 28, 2003 agreement failed to adhere to federal regulations requiring apprenticeship agreements to include specific information about the sponsor's ability to cancel the agreement both during and after the apprentice's probationary period. See 29 C.F.R. § 29.7(h)(1), (2). Less than two weeks after signing the March 28 agreement, Mercier signed another Apprentice Agreement on April 9, 2003, using a form distributed by the Massachusetts Department of Labor that did conform to federal regulations and did not include the proviso regarding ineligibility for readmission. Defendants have subsequently attempted to recharacterize the March 28 agreement as part of the "apprenticeship application" that must be read "in conjuction with" the April 9 Apprentice Agreement. (Doc. 69 ¶¶ 10-11.). The March 28 agreement, however, is titled "Apprentice Agreement," and it was signed by Mercier almost a year after she submitted her actual "application" to the Program in April 2002. (R. 167.)

Furthermore, even if readmission had been available in some cases, it is possible Mercier's application would have been rejected in any event based on the gravity of her earlier offense of falsifying Work Reports. There is nothing in the record to indicate the circumstances under which a terminated apprentice could be readmitted and who would make that determination. There is also no direct evidence before me as to whether apprentices terminated for similar offenses have ever been readmitted. If Mercier could show that readmission was in most cases close to automatic, her evidence of causation would be strong. If, on the other hand, terminated apprentices were routinely denied readmission, the question of causation would be considerably more difficult. I cannot determine as a matter of law on a summary judgment record whether Mercier's exercise of her ERISA rights was in fact responsible for the denial of her readmission to the Program. That is a matter to be resolved by a fact finder.

4. Specific Intent to Retaliate

In order to survive summary judgment on a claim of retaliation, Mercier must also present a "plausible showing of [defendants'] specific intent" to retaliate. Kouvchinov, 537 F.3d at 67. I find that the correspondence from defendants' counsel to Mercier's counsel makes it clear that the denial of Mercier's readmission was intended, at least in part, to chill Mercier's potential ERISA vindicatory litigation. Defendants' attempts to characterize their motivation as entirely non-retaliatory are not convincing.

Defendants have set forth several different non-retaliatory justifications for their refusal to readmit Mercier.³⁰ These include the supposed categorical rule against readmission for terminated apprentices and the gravity of Mercier's offense of falsifying her Work Reports, both of which were discussed above in connection with causation. Even if either or both of these reasons played some role in defendants' decision, neither fully accounts for the emphasis in the letter from defendants' counsel explaining Mercier would not be readmitted to the Program "under the current circumstances." (R. 386.) As neither the policy against readmission nor Mercier's offense were variable circumstances, it is arguably unclear why Mercier's application would not have been rejected outright if retaliation for exercise of her rights to pursue litigation were not also involved.

30 As Mercier has pointed out, a party's presentation of inconsistent explanations can itself provide evidence of pretext. See, e.g., E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994).

Defendants have elsewhere contended that the true motive for denying Mercier's readmission application was because, with respect to Mercier's legal claims, readmitting her could constitute an "adverse admission" that her initial termination had been improper. Defendants cite no authority, however, for the proposition that Mercier's readmission would have been admissible as evidence against them in a claim for denial of benefits based on wrongful termination. Indeed, this explanation can be read as a direct acknowledgment by defendants that Mercier's assertion of her legal claims was among the reasons for refusing her readmission, thereby supporting Mercier's evidence of retaliatory intent.

Defendants have also attempted to deflect the impact of their counsel's statements by characterizing them as benign exchanges in the course of ultimately unsuccessful settlement negotiations. It is true, as Mercier acknowledges, that she had proposed a settlement agreement that included readmission among its terms. The letters from defendants' counsel, however, clearly treat Mercier's application for readmission and her settlement proposal as distinct topics. The June 19, 2006 letter notes that Mercier "had applied for readmission into the Program and . . . in the near future her name would be reached for action." The letter further explained that it was because it was "unlikely that the Program would readmit [Mercier] with tort claims pending" that the timing was "an appropriate opportunity to resolve her claims, if possible." ( Id.) Similarly, the July 7, 2006 letter first notes that "even if Ms. Mercier express a desire to re-enroll the Trustees will not accept her under the current circumstances." (R. 386.) It later adds: "Finally, I can tell you unequivocally that your settlement proposal is unacceptable to the Trustees." ( Id.) I find the most likely way to read these letters is as an indication that surrendering or settling her legal claims was a condition precedent for Mercier's readmission to the Program.

5. Conclusion

For the reasons described above, I find that Mercier has satisfied her burden of showing: that she engaged in protected conduct; that defendants' denial of her readmission application could constitute prohibited adverse conduct under § 1140; and that defendants denied her readmission with retaliatory intent. I further find that Mercier has presented at least a genuine issue of fact as to the causal connection between her exercise of ERISA rights and the denial of her application for readmission; but on the current record significant questions remain unanswered regarding the issue of causation. I will therefore deny summary judgment to both parties on Count III. I will also deny Mercier's Rule 56(f) motion as to Count III because I find there is not a likelihood that her retaliation claim can be resolved at the summary judgment stage. I will, however, afford the parties an additional ninety (90) days of discovery to further develop the record in connection with Count III. Among the discoverable material that may be pertinent to the issue of causation is evidence relating to the Program's readmission process, including what criteria are employed in evaluating readmission applications and whether other previously terminated applicants have been permitted to reapply.

VI. CONCLUSION

For the reasons set forth more fully above, I DENY plaintiff's Rule 56(f) motions as to all counts. I GRANT defendant's summary judgment motion as to Counts I and II, and I DENY both parties' summary judgment motions as to Count III. In connection with Count III, I afford the parties an additional ninety (90) days of discovery. The Clerk shall set this case down for a pre-trial conference on a convenient date no earlier than May 15, 2009.